Yes, it’s finally here. The US Supreme Court is hearing two major cases this week – first on California’s Proposition 8 (that particularly nasty piece of legislation which took marriage equality away from people to whom it had already been granted) and tomorrow DOMA itself.

Firstly, Prop (H)8. This was a California voter initiative that defined marriage as ‘a union between one man and one woman’. (And is anyone else getting really sick of hearing that expression?) Let it be noted that Prop 8 is one of very few pieces of modern (western) legislation where a civil right previously granted has been revoked – and the only instance I am aware of that doesn’t relate to an issue of national security. Approximately 4,000 couples saw their previously legal marriages invalidated by this piece of legislation. Can you imagine the outcry if that had happened to any other group? If suddenly a state decided to invalidate inter-generational or interracial marriages? If suddenly they decided that all Mormon weddings were void? Imagine waking up one day and realising that your marriage had been dissolved against your will through no fault of your own. That’s what happened in California.

SCOTUS will be looking at whether or not that legislation violates the federal Constitution, and there are three ways they could go. They could decide that it is constitutional, which will leave individual states free to pass or revoke same-sex marriage as they see fit. But if that is the case, then there’s no reason why the states can’t equally decide to pass or revoke other marriages as they see fit, too – including and not limited to the examples I listed above.

They could decide that the supporters of Prop 8 lacked standing to appeal in the first instance. A trial judge already struck it down, and the decision in that case would stand. This ruling hangs on whether or not those in favour of the ban were affected by the introduction of SSM to begin with. After all, no-one else’s marriage was affected by the extension of marriage to gay couples as well as straight. This judgement would mean that same-sex marriages would recommence in California, but the ruling would only affect that state.

The jackpot result would be a ruling striking down Prop 8, and there are a number of grounds on which this could be done. Firstly, SCOTUS could rule that California was not entitled to withdraw equal marriage once it had been granted by the state’s Supreme Court. The implication of that ruling would be that while states are still free to implement (or not) SSM as they choose, once equal marriage rights are granted they cannot be revoked.

A better result would be a ruling that the state was not free to provide couples with all the benefits of marriage via civil unions while withholding the designation ‘married’. This would have a knock-on effect on other states where SSM is banned but civil unions are legal (currently HI, CA, OR, NV, IL, RI, NJ and DE).

The best result would be a ruling that all bans on SSM violate the Constitution. That would revoke all state statues limiting the definition of marriage to the hated ‘one man and one woman’ and basically legitimise SSMs across the US. Rather like how the Lawrence v Texas ruling struck down not only the sodomy laws in Texas, but across all the states (except Montana, which apparently is a law unto itself).

The second landmark hearing concerns DOMA, which (again) defines marriage as ‘only a legal union between one man and one woman as husband and wife’ when determining federal benefits, and whether or not DOMA violates the Constitution’s equal protection clause.

Again, this can go one of three ways. Firstly, they could cop out entirely and decide that they are powerless to rule on this question because the two opposing sides (the plaintiff and the Obama administration) both agree that the law is unconstitutional, and the House Republicans don’t have the standing to defend it. While this looks like a lot of hiding behind legal technicality, it would still be a positive decision. As a minimum the plaintiff (Edith Windsor) wins her case and most experts agree that such a ruling (an unlikely one in any case) would spell the demise of DOMA. How long it would take the paperwork to catch up, however, is anyone’s guess.

They could decide that DOMA is constitutional. This would mean that in the eyes of the federal government only opposite-sex married couples are really ‘married’ and entitled to receive federal benefits, while married same-sex couples would continue to be denied them. There are, for the record, over 1100 different benefits associated with this ruling.

And finally, the jackpot: a ruling that DOMA is unconstitutional. While this has no affect on the state-level bans on SSM, it does mean that in states that did allow SSMs those couples would immediately and automatically be entitled to the same federal benefits their heterosexual counterparts take for granted. Hurrah!

Combined, these two rules mark a watershed in the American equality movement. By June, SCOTUS could have effectively placed all gay Americans (and their partners) on equal footing on both a state and federal level. They could grant gay couples the entitlement to marry, and the entitlement to have that marriage recognised as equal to straight marriage. Failure at this level will set our movement back years – that’s no exaggeration. But I’m hopeful. I’ve read the briefs, and they look good. The Obama administration is refusing to defend DOMA. The supporters of Prop 8 had no legal grounds on which to bring the legislation to begin with. We will win this. We have to.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

Equal marriage. It’s time.

Kate Aaron

Born in Liverpool, Kate Aaron is a bestselling author of LGBT romances. Kate swapped the north-west for the midwest in October 2015 and married award winning author AJ Rose. Together they plan to take over the world.


Louisa Bacio · March 26, 2013 at 5:44 pm

So much at stake here. Thanks for the easy-to-understand explanation, too.

    Kate Aaron · March 26, 2013 at 6:08 pm

    You’re welcome! I’ve got everything crossed…

Craig · March 26, 2013 at 10:13 pm

The most likely decision on Prop 8 will be a combination. The major issue will be that denying a Right once granted is illegal in almost every situation. You have to show irreparable harm, and it’s tough showing any harm, let alone irreparable. Also the issue of standing might be clarified, since in almost all situations the appeal must be filed by a party to the action that can demonstrate some sort of “harm” due to the decision. Although this is typically economic in nature, that’s not an absolute. In any case, it’s impossible to find a single person on the losing side that can show they were harmed by allowing same sex couples to wed…so…no standing!

DOMA is a more interesting case, but it’s pretty clearly going to come down to proving (somehow) that the government has a compelling interest in stopping something from happening. About the only argument that could be made that holds any water at all is something akin to “we’ll have to pay out more benefits if more people have partners.” While that is possibly true, it opens the door to the government trying to discourage marriage in general, because it’s equally true for traditional marriages too, and that, of course, opens the door to the government showing preference for one group based upon…nothing legal.

I’m glad to see that your explanation actually includes the “real issues”…especially including the question of standing. Too many people don’t seem to notice that.

    Kate Aaron · March 27, 2013 at 10:59 am

    I tend to agree, I think Prop 8 will be resolved on the issue of standing rather than a cut-and-dried is/isn’t constitutional ruling. My prediction for DOMA is it will be ruled unconstitutional. After all, children cost the federal government money but no-one would entertain a cap on family size for that reason! And studies have shown that spending at state-level actually decreases upon the introduction of SSMs as spouses (and children) become eligible for private sector benefits such as medical insurance that they weren’t entitled to before.

    If I’m right it won’t be a perfect result, but it will pave the way for challenges to state level legislations that specifically prohibit the recognition of SSM under the standing argument.

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